1999 JTR(SC) 464
2000 1 AICLR 816 ; 1999 AIR(SCW) 4951 ; 2000 1 ALD(Cri)(SC) 613 ; 2000 AllMR(Cri)(SC) 347 ; 2000 2 BomCR(SC) 618 ; 1999 3 BomLR 234 ; 2000 1 EastCrC(SC) 188 ; 2000 121 ELT 7 ; 1999 10 JT 295 ; 1999 5 SCC 720 ; 1999 SCC(Cri) 1045 ; 1999 KHC 3925 ; 1999 9 Supreme 500
1999 (9) Supreme 500
SUPREME COURT OF INDIA
G.B. Pattanaik & Umesh C. Banarjee, JJ.
Enforcement Officer, Ted, Bombay -Appellant
versus
Bher Chand Tikaji Bora & Anr. -Respondents
Criminal Appeal No. 418 of 1999
Decided on 9-4-1999
IMPORTANT POINT
In case of FERA crime unless it is alleged and established in the materials that the appelicant is being unnessarily harassed y investigating agency court would not be justified in invoking jurisdiction u/s 438 and grant anticipatory bail-Merely because applicant is available for interogation anticipatory bail cannot be granted.
Act Referred :CRIMINAL PROCEDURE CODE : S.438
(A) The relevant statutory provision is Section 438 of the Code of Criminal Procedure, which governs the grant of anticipatory bail. The Enforcement Directorate is an investigating authority under laws such as the Foreign Exchange Regulation Act, and the appeal challenges the grant of anticipatory bail by a Single Judge of the High Court. The jurisdiction under this section must be exercised cautiously, especially in cases involving alleged white-collar economic offences, to balance individual liberty with the societal need to investigate offences without hindrance.
(B) The core legal principles are that anticipatory bail is not a right but a discretion, courts must ensure the accused is not misusing the process, and the mere availability of the accused for questioning does not automatically negate the need for anticipatory bail. The court must examine whether the investigation is being conducted in good faith and whether there is a genuine threat of harassment.
Facts of the case:
The respondent was under investigation by the Enforcement Directorate for alleged violations of the Foreign Exchange Regulation Act. The respondent was available for interrogation, and the prosecution did not avail of that opportunity. The learned Single Judge of the Bombay High Court granted anticipatory bail, relying on the availability of the respondent.
Findings of Court:
The learned Single Judge misread the applicable legal test by focusing solely on the respondent's availability. The High Court was wrong to grant anticipatory bail because the respondent is alleged to have committed a white-collar crime, and there was no showing of harassment or mala fide conduct by the investigating agency.
Issues:
Whether the availability of the accused for interrogation, without more, is sufficient to grant anticipatory bail in cases involving allegations under the Foreign Exchange Regulation Act.
Ratio Decidendi:
The court must exercise discretion under Section 438 of CrPC considering the nature of the offence, whether the accused is being harassed, and the broader societal need to combat white-collar crime. Availability alone does not justify granting anticipatory bail.
Result:
The appeal is allowed, and the order granting anticipatory bail is set aside.
(A) The relevant statutory provision is Section 438 of the Code of Criminal Procedure, which governs the grant of anticipatory bail. The Enforcement Directorate is an investigating authority under laws such as the Foreign Exchange Regulation Act, and the appeal challenges the grant of anticipatory bail by a Single Judge of the High Court. The jurisdiction under this section must be exercised cautiously, especially in cases involving alleged white-collar economic offences, to balance individual liberty with the societal need to investigate offences without hindrance.
(B) The core legal principles are that anticipatory bail is not a right but a discretion, courts must ensure the accused is not misusing the process, and the mere availability of the accused for questioning does not automatically negate the need for anticipatory bail. The court must examine whether the investigation is being conducted in good faith and whether there is a genuine threat of harassment.
Facts of the case:
The respondent was under investigation by the Enforcement Directorate for alleged violations of the Foreign Exchange Regulation Act. The respondent was available for interrogation, and the prosecution did not avail of that opportunity. The learned Single Judge of the Bombay High Court granted anticipatory bail, relying on the availability of the respondent.
Findings of Court:
The learned Single Judge misread the applicable legal test by focusing solely on the respondent's availability. The High Court was wrong to grant anticipatory bail because the respondent is alleged to have committed a white-collar crime, and there was no showing of harassment or mala fide conduct by the investigating agency.
Issues:
Whether the availability of the accused for interrogation, without more, is sufficient to grant anticipatory bail in cases involving allegations under the Foreign Exchange Regulation Act.
Ratio Decidendi:
The court must exercise discretion under Section 438 of CrPC considering the nature of the offence, whether the accused is being harassed, and the broader societal need to combat white-collar crime. Availability alone does not justify granting anticipatory bail.
Result:
The appeal is allowed, and the order granting anticipatory bail is set aside.
ORDER
1. Leave granted.
2. The Enforcemnt Directorate is in appeal before us against the order of the learned Single Judge of the Bombay High Court granting anticipatory bail to the respondent invoking jurisdiction under Section 438 of CrPC. From a bare reading of the impugned order it appears that the learned Single Judge is of the view that because the responent was available for interrogation and the prosecution did not avail of that opportunity there should not be any justification for not granting the anticipatory bail sought for. We have no hesitation to hold that the learned Judge has misread the decision of this Court referred to in the impugned order. The critria and questions to be considered for exercising power under Section 438 of CrPC has been recently dealt with in Dukhishyan Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria1. The white-collar criminal like the respondent against whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiciton under Section 438 CrPC and granting anticipatory bail. In the facts and circumstances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking jurisdiction under Section 438 and granting anticipatory bail to the respondent. We, therefore, set aside the impugned order of the High Court. The appeal is accordingly allowed.
(C.R.) Appeal allowed.
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